Imbalances. At the Closing, ASSIGNEE shall assume responsibility for any and all oil and gas production imbalances with respect to the Property at the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid by ASSIGNEE is based on (i) the assumed Production Imbalances set forth in Exhibit F and (ii) the exclusion from this transaction of any imbalances attributable to the Property downstream of the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree to exchange additional compensation, at the rate provided in Exhibit F for the difference between the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances with respect to the Property, all of which shall constitute Assumed Obligations. All imbalances associated with the Property downstream of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, and are reserved to and retained by ASSIGNOR and shall constitute Retained Obligations.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Denbury Resources Inc)
Imbalances. At the Closing, ASSIGNEE (a) All Imbalances (whether for overproduction by Noble or underproduction by Noble) shall assume responsibility for any and all oil and gas production imbalances with respect pass to the Property at the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid by ASSIGNEE is based on (i) the assumed Production Imbalances set forth in Exhibit F and (ii) the exclusion from this transaction of any imbalances attributable to the Property downstream Purchaser as of the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR Effective Time, and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree to exchange additional compensation, at the rate except as provided in Exhibit F for the difference between the assumed Production Imbalances Section 2.2 and the revised Production Imbalances determined by the parties. Such settlement Section 11.5(b), Purchaser shall thereupon be final entitled to and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from assumes all rights against (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances with respect and all such Imbalances. Except as provided in Section 2.2 and Section 11.5(b), there shall be no amounts paid to or from either Party to the Propertyother as a Purchase Price adjustment or otherwise based on Imbalances. Except as provided in Section 2.2 and Section 11.5(b), Purchaser from and after Closing accepts sole responsibility for and agrees to pay all of which shall constitute Assumed Obligations. All imbalances costs and expenses associated with Imbalances associated with the Property downstream Assets, and Purchaser (on behalf of Purchaser and its successors and assigns) irrevocably waives any and all claims it and they may have against Noble associated with the same; and PURCHASER FROM AND AFTER THE CLOSING DATE RELEASES NOBLE FROM AND SHALL FULLY PROTECT, DEFEND, INDEMNIFY AND HOLD NOBLE HARMLESS FROM AND AGAINST ANY AND ALL LOSSES RELATING TO, ARISING OUT OF, OR CONNECTED WITH, DIRECTLY OR INDIRECTLY, IMBALANCES ASSOCIATED WITH THE ASSETS, NO MATTER WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE TIME. THIS INDEMNITY AND DEFENSE OBLIGATION WILL APPLY REGARDLESS OF CAUSE OR OF ANY NEGLIGENT ACTS OR OMISSIONS (INCLUDING SOLE NEGLIGENCE, CONCURRENT NEGLIGENCE OR STRICT LIABILITY), BREACH OF DUTY (STATUTORY OR OTHERWISE), VIOLATION OF LAW, OR OTHER FAULT OF NOBLE, OR ANY PRE-EXISTING DEFECT.
(b) In the event Purchaser shall determine prior to Closing that Imbalances under Section 2.2(a)(iii) are in the excess of 2.1 bcf of gas or that Imbalances under Section 2.2(b)(vii) are in excess of .1 bcf of gas, then Purchaser shall promptly notify Noble of the Property or at gas processing plantsamount of such excess. Noble and Purchaser prior to the Closing Date shall endeavor to agree upon the amount of such excess Imbalances. If the Parties shall have failed to agree thereupon by the Closing Date, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, Price shall not be adjusted therefor and are reserved the matter shall be resolved by arbitration pursuant to and retained by ASSIGNOR and shall constitute Retained ObligationsSection 17.1.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Noble Energy Inc), Purchase and Sale Agreement (Superior Energy Services Inc)
Imbalances. At (a) Buyer acknowledges that Imbalances may exist that are associated with the ClosingProperties and, ASSIGNEE if Closing occurs, all Imbalances (whether for overproduction or underproduction by Seller) shall assume responsibility for any be assigned to and all oil and gas production imbalances with respect to the Property at the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid assumed by ASSIGNEE is based on (i) the assumed Production Imbalances set forth in Exhibit F and (ii) the exclusion from this transaction of any imbalances attributable to the Property downstream Buyer as of the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR Effective Time, and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree Buyer shall thereupon be entitled to exchange additional compensation, at the rate provided in Exhibit F for the difference between the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and shall bear all obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production and all Imbalances, no matter when such Imbalances arose. Notwithstanding anything contained in any other provision of this Agreement, including Article 8 except as provided in Article 12.6(b):
(i) If Closing occurs, Buyer, from and after Closing, assumes and accepts sole responsibility for and agrees to pay all costs and expenses associated with Imbalances associated with the Properties, and Buyer (on behalf of Buyer Group and their successors and assigns) irrevocably waives any and all claims it and they may have against Seller Group associated with such Imbalances; and
(ii) If Closing occurs, Buyer (on behalf of Buyer Group and their successors and assigns), from and after Closing, releases Seller Group from, and shall fully protect, defend, indemnify and hold Seller Group harmless from and against, any and all claims and Claims relating to, arising out of, or connected with, directly or indirectly, Imbalances associated with the Properties, no matter whether arising before or after the Effective Time. This indemnity and defense obligation will apply regardless of cause or of any negligent acts or omissions (including active or passive, sole, concurrent or comparative negligence), strict liability, breach of duty (statutory or otherwise), violation of Law, or other fault of Seller Group, or any pre-existing defect.
(b) Notwithstanding Article 12.6(a), Buyer and Seller agree that the value of the Imbalances attributable to the Properties as of June 30, 2011 set forth on Schedule 12.6 will be included in the Purchase Price and will not be reflected as a Purchase Price adjustment on the Closing Statement; and that the following Purchase Price adjustments, if applicable, with respect to Imbalances attributable to the PropertyProperties shall be made between the Parties in the Final Accounting Statement, all of which shall constitute Assumed Obligations. All imbalances associated and each Party waives any other remedies with respect to Imbalances:
(i) If Seller’s Imbalance attributable to the Properties for an individual Property downstream as of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and Effective Time varies from the foregoing indemnity, will not adjust amount for such Property set forth in Schedule 12.6 to the Purchase Price, and are reserved detriment of Buyer (as owner of such Property after Closing) then Seller shall pay Buyer $4.25 for each MMBtu variance in excess of the amount set forth in Schedule 12.6 as part of the Final Accounting Statement.
(ii) If Seller’s Imbalance attributable to and retained by ASSIGNOR and the Properties for an individual Property as of the Effective Time varies from the amount for such Property set forth in Schedule 12.6 to the benefit of Buyer (as owner of such Property after Closing) then Buyer shall constitute Retained Obligationspay Seller $4.25 for each MMBtu variance less than the amount set forth in Schedule 12.6 as part of the Final Accounting Statement.
Appears in 1 contract
Imbalances. At The Seller shall make reasonable efforts to cause the Closing, ASSIGNEE shall assume responsibility for any and all oil and individual physical natural gas production cumulative imbalances with respect to the Property at Assets to be reduced to as close to zero as possible as of the XxxxxClosing Date. To the extent all necessary information is available, Leases and Equipment a determination of the imbalances existing on the Assets shall be made as of the Closing Date. To the extent all necessary information is not available prior to the Closing Date, such determination of imbalances shall be made within 180 days after Closing Date (“Production Imbalances”the "Imbalance Adjustment Period"). The Purchase Price paid Seller shall prepare a schedule of imbalances as of the Closing Date, which shall set forth by ASSIGNEE is shipper, estimated imbalance receivables and imbalance payables. To the extent that there are any remaining imbalances attributable to actions which occurred prior to the Closing Date at the end of the Imbalance Adjustment Period, the Seller and the Buyer shall agree to an imbalance settlement statement, and based on upon such statement (i) the assumed Production Imbalances Buyer shall "cash out" and pay the Seller for any imbalances due from shippers by multiplying the imbalance quantity by the "Imbalance Price" set forth in Exhibit F below, and (ii) the exclusion from this transaction of Seller shall "cash out" and pay the Buyer for any imbalances attributable due to shippers by multiplying the imbalance quantity by the "Imbalance Price" described below. The "Imbalance Price" shall be arithmetic average of the monthly Index Prices found in the first issue of the month (pertaining to the Property downstream last month in the Imbalance Adjustment Period) of The McGraw-Hill Companies, Xxx.'x "Inside F.E.R.C.'s Gas Market Report" under the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccuratetable labeled PRICES OF SPOT GAS DELIVERED TO PIPELINES for ANR Pipeline Co. (Oklahoma), the parties agree to exchange additional compensation, at the rate provided in Exhibit F for the difference between the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against Natural Gas Pipeline of America (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security ifMid- Continent Zone), and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances with respect to the Property, all of which shall constitute Assumed Obligations. All imbalances associated with the Property downstream of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, and are reserved to and retained by ASSIGNOR and shall constitute Retained Obligations.Panhandle Eastern Pipe Line Co. (Texas- Oklahoma mainline)
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midcoast Energy Resources Inc)
Imbalances. At Buyer acknowledges that Imbalances may exist that are associated with the Closing, ASSIGNEE shall assume responsibility for any Properties and all oil and gas production imbalances with respect Imbalances (whether for overproduction by Seller or underproduction by Seller) shall pass to the Property at the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid by ASSIGNEE is based on (i) the assumed Production Imbalances set forth in Exhibit F and (ii) the exclusion from this transaction of any imbalances attributable to the Property downstream Buyer as of the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR Effective Time, and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree Buyer shall thereupon be entitled to exchange additional compensation, at the rate provided in Exhibit F for the difference between the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances and all such Imbalances. Except as provided below in this Article, there shall be no amounts paid to or from either Party to the other as a Purchase Price adjustment, as part of the Final Accounting Settlement or otherwise, based on Imbalances. Except as provided below in this Article, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, INCLUDING ARTICLE 8:
(a) IF CLOSING OCCURS, BUYER FROM AND AFTER CLOSING ACCEPTS SOLE RESPONSIBILITY FOR AND AGREES TO PAY ALL COSTS AND EXPENSES ASSOCIATED WITH IMBALANCES ASSOCIATED WITH THE PROPERTIES, AND BUYER (ON BEHALF OF BUYER GROUP AND THEIR SUCCESSORS AND ASSIGNS) IRREVOCABLY WAIVES ANY AND ALL CLAIMS IT AND THEY MAY HAVE AGAINST SELLER GROUP ASSOCIATED WITH THE SAME; AND
(b) IF CLOSING OCCURS, BUYER FROM AND AFTER CLOSING RELEASES SELLER GROUP FROM AND SHALL FULLY PROTECT, DEFEND, INDEMNIFY AND HOLD SELLER GROUP HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS RELATING TO, ARISING OUT OF, OR CONNECTED WITH, DIRECTLY OR INDIRECTLY, IMBALANCES ASSOCIATED WITH THE PROPERTIES, NO MATTER WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE TIME. THIS INDEMNITY AND DEFENSE OBLIGATION WILL APPLY REGARDLESS OF CAUSE OR OF ANY NEGLIGENT ACTS OR OMISSIONS (INCLUDING SOLE NEGLIGENCE, CONCURRENT NEGLIGENCE OR STRICT LIABILITY), BREACH OF DUTY (STATUTORY OR OTHERWISE), VIOLATION OF LAW, OR OTHER FAULT OF SELLER GROUP, OR ANY PRE-EXISTING DEFECT. Notwithstanding the preceding, the following adjustment shall be made between the Parties with respect to Imbalances:
(i) If Seller's aggregate production Imbalances on January 1, 2003 vary from - 1.0 Bcfe (underproduced) to the Propertydetriment of Seller by more than 1.0 Bcfe, all then Seller shall pay Buyer the product of which $2.00/mcf and the entire amount of such variance (including the first 1.0 Bcfe); or
(ii) If Seller's aggregate production Imbalances on January 1, 2003 vary from - 1.0 Bcfe (underproduced) to the benefit of Seller by more than 1.0 Bcfe, then Buyer shall constitute Assumed Obligations. All imbalances associated with pay Seller the Property downstream product of $2.00/mcf and the Property or at gas processing plantsentire amount of such variance (including the first 1.0 Bcfe), including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, and are reserved to and retained by ASSIGNOR and shall constitute Retained ObligationsAND EACH PARTY WAIVES ANY OTHER REMEDIES.
Appears in 1 contract
Imbalances. At (a) Purchaser acknowledges that Imbalances may exist that are associated with the ClosingProperties and, ASSIGNEE if Closing occurs, all Imbalances shall assume responsibility for any be assigned to and all oil and gas production imbalances with respect to the Property at the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid assumed by ASSIGNEE is based on (i) the assumed Production Imbalances set forth in Exhibit F and (ii) the exclusion from this transaction of any imbalances attributable to the Property downstream Purchaser as of the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR Effective Time, and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree Purchaser shall thereupon be entitled to exchange additional compensation, at the rate provided in Exhibit F for the difference between the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and shall bear all obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production and all Imbalances no matter when such Imbalances arose.
(b) Purchaser agrees to pay Seller the net amount, if positive, of Imbalances reflected on Schedule 12.7(b) on the Closing Date multiplied by the applicable Imbalance Rate by means of an adjustment to the Purchase Price pursuant to Section 2.3, and Seller agrees that the Purchase Price shall be reduced pursuant to Section 2.3 by the net amount, if negative, of Imbalances reflected on Schedule 12.7(b) on the Closing Date multiplied by the applicable Imbalance Rate by means of an adjustment to the Purchase Price pursuant to Section 2.3, in each case subject to adjustment in the Final Settlement Statement in accordance with Section 12.7(c). Each Party waives any other remedies with respect to any of the Propertymatters settled pursuant to this Section 12.7.
(c) Notwithstanding Section 12.7(b), each Party shall notify the other Party on or before ten (10) Business Days prior to the delivery date for the Final Settlement Statement if it has Knowledge that any of the following adjustments with respect to Imbalances are applicable and such adjustments, if applicable, with respect to Imbalances shall be made between the Parties in the Final Settlement Statement, and each Party waives any other remedies with respect to Imbalances (subject to each Party’s rights under Section 6.6 with respect to such adjustments in the Final Settlement Statement):
(i) If the actual aggregate Imbalances as of the Effective Time exceed the estimated aggregate Imbalance as reflected on Schedule 12.7(b) for purposes of Closing, then Purchaser shall pay Seller the product of the Imbalance Rate and the entire amount of such variance; or
(ii) If the actual aggregate Imbalances as of the Effective Time are less than the estimated aggregate Imbalance as reflected on Schedule 12.7(b) for purposes of Closing, then Seller shall pay Purchaser the product of the Imbalance Rate and the entire amount of such variance. HOUSTON 1151220v.11
(d) Notwithstanding anything contained in any other provision of this Agreement to the contrary, including Article VIII, if Closing occurs and except as provided in Section 12.7(b):
(i) Purchaser expressly assumes and accepts sole responsibility for and agrees to pay all of which shall constitute Assumed Obligations. All imbalances costs and expenses associated with Imbalances associated with the Property downstream of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase PriceProperties, and are reserved to Purchaser (on behalf of Purchaser Group and retained by ASSIGNOR their successors and assigns) irrevocably waives any and all Claims they may have against Seller Group associated with such Imbalances; and
(ii) Purchaser (on behalf of Purchaser Group and their successors and assigns) releases Seller Group from, and shall constitute Retained Obligationsfully protect, defend, indemnify and hold harmless Seller Group from and against, any and all Claims relating to, arising out of, or connected with, directly or indirectly, Imbalances associated with the Properties, no matter whether arising before, on or after the Effective Time. These indemnity and defense obligations apply regardless of cause or of any negligent acts or omissions (including active or passive, sole, concurrent or comparative negligence or gross negligence), strict liability, breach of duty (statutory or otherwise), violation of Law or other fault of Seller Group, or any pre-existing defect.
Appears in 1 contract
Imbalances. At (a) Purchaser acknowledges that Imbalances may exist that are associated with the ClosingProperties and, ASSIGNEE if Closing occurs, all Imbalances shall assume responsibility for be assigned to and assumed by Purchaser as of the Effective Time, and Purchaser shall thereupon be entitled to all rights and shall bear all obligations with respect to any and all oil Imbalances, no matter when such Imbalances arose. Notwithstanding anything contained in any other provision of this Agreement but subject to Purchaser’s rights under Article VIII, if Closing occurs and gas production imbalances with respect to the Property at the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid by ASSIGNEE is based on except as provided in Section 12.6(b):
(i) Purchaser expressly assumes and accepts sole responsibility for and agrees to pay all costs and expenses associated with Imbalances associated with the assumed Production Properties, and Purchaser (on behalf of Purchaser Group and their successors and assigns) irrevocably waives any and all Claims they may have against Seller Group associated with such Imbalances; and
(ii) Purchaser (on behalf of Purchaser Group and their successors and assigns) releases Seller Group from, and shall fully protect, defend, indemnify and hold harmless Seller Group from and against, any and all Claims relating to, arising out of, or connected with, directly or indirectly, Imbalances associated with the Properties, no matter whether arising before, on or after the Effective Time. These indemnity and defense obligations apply regardless of cause or of any negligent acts or omissions (including active or passive, sole, concurrent or comparative negligence or gross negligence), strict liability, breach of duty (statutory or otherwise), violation of Law or other fault of Seller Group, or any pre-existing defect.
(b) Notwithstanding Section 12.6(a), the Parties shall adjust the Purchase Price by the net value of the Imbalances attributable to the Properties as of the Effective Time set forth on Schedule 12.6 on the Closing Date (it being recognized that the volumes reflected on Schedule 12.6 on the Signing Date are not as of the Effective Time) in Exhibit F the Preliminary Settlement Statement, which shall be subject to further adjustment in the Final Settlement Statement pursuant to Section 6.6 and based upon subsections (i) and (ii) below. Each Party shall notify the exclusion from this transaction other Party on or before one hundred twenty (120) Days after the Closing Date if it has Knowledge that any of any imbalances the following adjustments with respect to Imbalances is applicable and such adjustments, if applicable, shall be made between the Parties in the Final Settlement Statement:
(i) If the net aggregate Imbalance attributable to the Property downstream Properties as of the Effective Time varies from the net aggregate amount set forth in Schedule 12.6 to the detriment of Purchaser (as owner of such Property or at gas processing plants including associated make-up or cash settlement rightsafter Closing), then Seller shall pay Purchaser, by means of an adjustment in the Final Settlement Statement, for each MMBtu variance in excess of the amount set forth in Schedule 12.6 using the following pricing per MMBtu, as applicable: Xxxxx Xxxxxx - $5.25, Ram Xxxxxx - $4.34, Xxxxxx Xxxx Xxxx - $1.99 and Holstein - $5.28.
(ii) If the net aggregate Imbalance attributable to the Properties as of the Effective Time varies from the net aggregate amount set forth in Schedule 12.6 to the benefit of Purchaser (as owner of such Property after Closing), then Purchaser shall pay Seller, by means of an adjustment in the Final Settlement Statement, for each MMBtu variance less than the amount set forth in Schedule 12.6 using the following pricing per MMBtu, as applicable: Xxxxx Xxxxxx - $5.25, Ram Xxxxxx - $4.34, Xxxxxx Xxxx Xxxx - $1.99 and Holstein - $5.28. If ASSIGNOR and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurateSubject to this Section 12.6, the parties agree to exchange additional compensation, at the rate provided in Exhibit F for the difference between the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the each Party waives any other concerning any Production Imbalances remedies with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances with respect to the Property, all of which shall constitute Assumed Obligations. All imbalances associated with the Property downstream of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, and are reserved to and retained by ASSIGNOR and shall constitute Retained ObligationsImbalances.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Plains Exploration & Production Co)
Imbalances. At the ClosingFor purposes of this Agreement, ASSIGNEE shall assume responsibility for any and all oil and gas “Imbalances” means over-production imbalances or under-production subject to an imbalance or make-up obligation with respect to the Property at the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid by ASSIGNEE is based on (i) the assumed Production Imbalances set forth in Exhibit F and (ii) the exclusion Hydrocarbons produced from this transaction of any imbalances attributable or allocated to the Property downstream Subject Interests, regardless of the Property whether such over-production or at gas processing plants including associated under-production, imbalance or make-up or cash settlement rights. If ASSIGNOR and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree to exchange additional compensation, obligation arises at the rate provided wellhead, pipeline, gathering system, transportation or other location and regardless of whether the same arises under contract or by operation of Law. Buyer and the Company Sellers shall jointly verify the actual net imbalances as of the Effective Time in Exhibit F the Closing Statement (as set out in Section 7.25 of the Disclosure Schedule) and the Accounting Statement and any Imbalances shall be accounted for the difference between the assumed Production Imbalances Parties in the Closing Statement and the revised Production Imbalances determined by Accounting Statement at the partiesNew York Mercantile Exchange (NYMEX) closing price per MCF (or, with respect to oil Imbalances, per barrel) on the third (3rd) Business Day preceding the Effective Time. Such This settlement under the Accounting Statement shall be final and neither party thereafter Party afterwards shall make claim upon the other Party concerning any Production Imbalances with respect to the PropertyImbalances. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, BUYER ASSUMES ALL RIGHTS AND LIABILITIES RELATING TO IMBALANCES DISCOVERED AFTER THE ACCOUNTING STATEMENT INCLUDING ANY REVENUE ADJUSTMENT CAUSED BY SUCH SUBSEQUENTLY DISCOVERED IMBALANCES AND SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against INDEMNIFY SELLERS’ INDEMNITEES FROM AND AGAINST ANY LOSSES, BY ANY PERSON, ARISING OUT OF SUCH IMBALANCES REGARDLESS OF SELLERS’ NEGLIGENCE OR FAULT (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances with respect to the Property, all of which shall constitute Assumed Obligations. All imbalances associated with the Property downstream of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, and are reserved to and retained by ASSIGNOR and shall constitute Retained ObligationsINCLUDING STRICT LIABILITY).
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Resolute Energy Corp)
Imbalances. At (a) Schedule 1.1(a) sets out the Closing, ASSIGNEE actual amounts of the Assumed Imbalance Receivables and the Assumed Imbalance Payables as of the date set forth in such schedule. DEFS shall assume responsibility use commercially reasonable efforts to minimize the amount of the Assumed Imbalance Receivables and the Assumed Imbalance Payables outstanding as of the Effective Time. DEFS shall make a good faith estimate of the Assumed Imbalance Receivables and Assumed Imbalance Payables as of the date five (5) days prior to the Closing Date and update Schedule 1.1
(a) to reflect such estimate. The Assumed Imbalance Receivables as set out in the final Schedule 1.1
(a) shall be for the sole benefit of BUYER and it shall be the sole obligation of BUYER to discharge the Assumed Imbalance Payables as set out in the final Schedule 1.1
(a) Such amounts shall be cashed out as between the Parties based upon the formula used to value the Excess Inventory. BUYER and DEFS agree to cooperate and to make available to each other all information necessary to calculate and to confirm and verify the actual volume and value of Imbalances.
(b) DEFS shall retain any and all oil such Imbalances other than the Assumed Imbalance Receivables and gas production imbalances with respect the Assumed Imbalance Payables. BUYER shall use reasonable good faith efforts to assist DEFS (as DEFS may reasonably request) in collecting such amounts and pay to DEFS any such amounts (and the Property at market value of any Imbalance delivered in kind) that BUYER collects or receives. Until the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid by ASSIGNEE is based on earlier of (i) the assumed Production Imbalances set forth collection of the Imbalance Receivables in Exhibit F and respect of Conroe in full, (ii) the exclusion date two years from this transaction of any imbalances the Effective Time, or (iii) DEFS providing written notice to BUYER directing otherwise; BUYER shall continue to suspend payments to Third Persons to the extent attributable to production proceeds at Conroe, pay such amount to DEFS and use reasonable good faith efforts to assist DEFS in the Property downstream collection of the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR Imbalance Receivables, subject to full indemnification and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree to exchange additional compensation, at the rate provided in Exhibit F for the difference between the assumed Production Imbalances and the revised Production Imbalances determined defense by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances with respect to the Property, all of which shall constitute Assumed Obligations. All imbalances associated with the Property downstream of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, and are reserved to and retained by ASSIGNOR and shall constitute Retained ObligationsDEFS.
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Imbalances. At Seller shall make reasonable efforts to cause the Closing, ASSIGNEE shall assume responsibility for any and all oil and individual physical natural gas production cumulative imbalances with respect to the Property System to be reduced to as close to zero as possible as of the Closing Date. A determination of the imbalances existing on the System, as of the Accounting Closing Date, shall be made by Seller using System measurement and other information then available, and supplemented by appropriate historical and current operational information. Seller shall prepare an “Imbalance Schedule” as of the Accounting Closing Date, which shall set forth by shipper, estimated imbalance receivables and imbalance payables. Seller shall proceed post-closing, with prior notice to Buyer, to attempt to effect imbalance resolutions among the various shippers on the System, by promoting non-cash and non-physical book entries to effect imbalance resolutions; if all Pre-Accounting Closing Date imbalances have not been resolved on or before the ____th day following the Accounting Closing Date (the “Imbalance Resolution Deadline”), to the extent that there are any remaining imbalances attributable to actions which occurred prior to the Accounting Closing Date at the Xxxxxend of the Imbalance Resolution Deadline, Leases Seller and Equipment (“Production Imbalances”). The Purchase Price paid by ASSIGNEE is Buyer shall agree to an imbalance settlement statement, and based on upon such statement (i) Buyer shall cash out and pay Seller for any imbalances due from shippers by multiplying the assumed Production Imbalances set forth in Exhibit F and imbalance quantity by the “Imbalance Price” or (ii) the exclusion from this transaction of Seller shall cash out and pay Buyer for any imbalances attributable due to shippers by multiplying the imbalance quantity by the “Imbalance Price”. The “Imbalance Price” shall be the monthly Index Price found in the first issue of the month (pertaining to the Property downstream of the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree to exchange additional compensation, at the rate provided in Exhibit F last month for the difference between Imbalance Resolution Deadline) of The XxXxxx-Xxxx Companies, Inc.’s “Inside F.E.R.C.’s Gas Market Report” under the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances with respect to the Property, all of which shall constitute Assumed Obligations. All imbalances associated with the Property downstream of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, and are reserved to and retained by ASSIGNOR and shall constitute Retained Obligationstable labeled PRICES OF SPOT GAS DELIVERED TO PIPELINES for _____________________________.
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Samples: Purchase and Sale Agreement
Imbalances. At (a) Purchaser acknowledges that Imbalances may exist that are associated with the ClosingPurchased Assets and, ASSIGNEE if Closing occurs, all Imbalances shall assume responsibility for any be assigned to and all oil and gas production imbalances with respect to the Property at the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid assumed by ASSIGNEE is based on (i) the assumed Production Imbalances set forth in Exhibit F and (ii) the exclusion from this transaction of any imbalances attributable to the Property downstream Purchaser as of the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR Effective Time, and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree Purchaser shall thereupon be entitled to exchange additional compensation, at the rate provided in Exhibit F for the difference between the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and shall bear all obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production and all Imbalances no matter when such Imbalances arose.
(b) Purchaser agrees to pay Seller the net amount, if positive, of Imbalances reflected on Schedule 12.6(b) on the Closing Date multiplied by the applicable Imbalance Rate by means of an adjustment to the Purchase Price pursuant to Section 2.3, and Seller agrees that the Purchase Price shall be reduced pursuant to Section 2.3 by the net amount, if negative, of Imbalances reflected on Schedule 12.6(b) on the Closing Date multiplied by the applicable Imbalance Rate by means of an adjustment to the Purchase Price pursuant to Section 2.3, in each case subject to adjustment in the Final Settlement Statement in accordance with Section 12.6(c). Each Party waives any other remedies with respect to any of the Propertymatters settled pursuant to this Section 12.6.
(c) Notwithstanding Section 12.6(b), each Party shall notify the other Party on or before ten (10) Business Days prior to the delivery date for the Final Settlement Statement if it has Knowledge that any of the following adjustments with respect to Imbalances are applicable and such adjustments, if applicable, with respect to Imbalances shall be made between the Parties in the Final Settlement Statement, and each Party waives any other remedies with respect to Imbalances:
(i) If the actual aggregate Imbalances as of the Effective Time exceed the estimated aggregate Imbalance as reflected on Schedule 12.6(b) for purposes of Closing, then Purchaser shall pay Seller the product of the Imbalance Rate and the entire amount of such variance; or
(ii) If the actual aggregate Imbalances as of the Effective Time are less than the estimated aggregate Imbalance as reflected on Schedule 12.6(b) for purposes of Closing, then Seller shall pay Purchaser the product of the Imbalance Rate and the entire amount of such variance.
(d) Notwithstanding anything contained in any other provision of this Agreement to the contrary, including Article VIII, if Closing occurs and except as provided in Section 12.6(b):
(i) Purchaser expressly assumes and accepts sole responsibility for and agrees to pay all of which shall constitute Assumed Obligations. All imbalances costs and expenses associated with Imbalances associated with the Property downstream of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase PricePurchased Assets, and are reserved to Purchaser (on behalf of Purchaser Group and retained by ASSIGNOR their successors and assigns) irrevocably waives any and all Claims they may have against Seller Group associated with such Imbalances; and
(ii) Purchaser (on behalf of Purchaser Group and their successors and assigns) releases Seller Group from, and shall constitute Retained Obligationsfully protect, defend, indemnify and hold harmless Seller Group from and against, any and all Claims relating to, arising out of, or connected with, directly or indirectly, Imbalances associated with the Purchased Assets, no matter whether arising before, on or after the Effective Time. These indemnity and defense obligations apply regardless of cause or of any negligent acts or omissions (including active or passive, sole, concurrent or comparative negligence or gross negligence), strict liability, breach of duty (statutory or otherwise), violation of Law or other fault of Seller Group, or any pre-existing defect.
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Samples: Purchase and Sale Agreement (Eagle Rock Energy Partners L P)
Imbalances. At The Seller shall make reasonable efforts to cause the Closing, ASSIGNEE shall assume responsibility for any and all oil and individual physical natural gas production cumulative imbalances with respect to the Property at Assets to be reduced to as close to zero as possible as of the XxxxxClosing Date. To the extent all necessary information is available, Leases and Equipment a determination of the imbalances existing on the Assets shall be made as of the Closing Date. To the extent all necessary information is not available prior to the Closing Date, such determination of imbalances shall be made within 180 days after Closing Date (“Production Imbalances”the "Imbalance Adjustment Period"). The Purchase Price paid Seller shall prepare a schedule of imbalances as of the Closing Date, which shall set forth by ASSIGNEE is shipper, estimated imbalance receivables and imbalance payables. To the extent that there are any remaining imbalances attributable to actions which occurred prior to the Closing Date at the end of the Imbalance Adjustment Period, the Seller and the Buyer shall agree to an imbalance settlement statement, and based on upon such statement (i) the assumed Production Imbalances Buyer shall "cash out" and pay the Seller for any imbalances due from shippers by multiplying the imbalance quantity by the "Imbalance Price" set forth in Exhibit F below, and (ii) the exclusion from this transaction of Seller shall "cash out" and pay the Buyer for any imbalances attributable due to shippers by multiplying the imbalance quantity by the "Imbalance Price" described below. The "Imbalance Price" shall be arithmetic average of the monthly Index Prices found in the first issue of the month (pertaining to the Property downstream last month in the Imbalance Adjustment Period) of The XxXxxx-Xxxx Companies, Inc.'s "Inside F.E.R.C.'s Gas Market Report" under the Property or at gas processing plants including associated maketable labeled PRICES OF SPOT GAS DELIVERED TO PIPELINES for ANR Pipeline Co. (Oklahoma), Natural Gas Pipeline of America (Mid-up or cash settlement rights. If ASSIGNOR and ASSIGNEE determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree to exchange additional compensation, at the rate provided in Exhibit F for the difference between the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE will be solely responsible for, SHALL ASSUME, AND RELEASES AND WILL INDEMNIFY, DEFEND AND HOLD ASSIGNOR HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security ifContinent Zone), and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances with respect to the Property, all of which shall constitute Assumed Obligations. All imbalances associated with the Property downstream of the Property or at gas processing plants, including associated makePanhandle Eastern Pipe Line Co. (Texas-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, and are reserved to and retained by ASSIGNOR and shall constitute Retained Obligations.Oklahoma mainline)
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Samples: Purchase and Sale Agreement (Midcoast Energy Resources Inc)
Imbalances. At the Closing, ASSIGNEE BUYER shall assume responsibility for any and all oil and gas production imbalances with respect to the Property at the Xxxxx, Leases and Equipment (“Production Imbalances”). The Purchase Price paid by ASSIGNEE BUYER is based on (i) the assumed Production Imbalances set forth in Exhibit F and (ii) the exclusion from this transaction of any imbalances attributable to the Property downstream of the Property or at gas processing plants including associated make-up or cash settlement rights. If ASSIGNOR SELLER and ASSIGNEE BUYER determine no later than 180 days after Closing that the assumed Production Imbalances stated in Exhibit F are inaccurate, the parties agree to exchange additional compensation, at the rate as provided in Exhibit F F, for the difference between the assumed Production Imbalances and the revised Production Imbalances determined by the parties. Such settlement shall be final and neither party thereafter shall make claim upon the other concerning any Production Imbalances with respect to the Property. Except with respect to its right to receive the post-Closing Purchase Price adjustment set forth above, ASSIGNEE BUYER will be solely responsible for, SHALL ASSUMEshall assume, AND RELEASES AND WILL and releases and will INDEMNIFY, DEFEND AND HOLD ASSIGNOR SELLER HARMLESS from all rights against (including rights to receive make-up gas or to receive cash balancing payments) and obligations to (including obligations to make-up gas or to make cash balancing payments and/or posting security if, and to the extent, requested by any underproduced party pursuant to any operating agreement or gas balancing agreement) third parties with respect to any Production Imbalances with respect to the Property, all of which shall constitute Assumed Obligations. All imbalances associated with the Property downstream of the Property or at gas processing plants, including associated make-up or cash settlement rights, are excluded from this transaction and from the foregoing indemnity, will not adjust the Purchase Price, and are reserved to and retained by ASSIGNOR and shall constitute Retained ObligationsSELLER.
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